ADL Model Legislation and the Inclusion of Gender

ADL Model Legislation

The Anti-Defamation League model hate crimes legislation has been drafted to cover not just anti-Semitic crimes, but all hate crimes. Currently, 40 states and the District of Columbia have enacted laws similar to or based on the ADL model, and almost every state has some form of legislation which can be invoked to redress bias-motivated crimes

The core of the ADL legal approach is a "penalty-enhancement" concept. In a landmark decision issued in June 1993, the United States Supreme Court unanimously upheld the constitutionality of Wisconsin's penalty-enhancement hate crimes statute, which was based on the ADL model. Expressions of hate protected by the First Amendment's free speech clause are not criminalized. However, criminal activity motivated by hate is subject to a stiffer sentence. A defendant is subject to an enhanced penalty if he intentionally selects his victim based upon his perception of the victim's race, religion, national origin, sexual orientation or gender.

The ADL model statute also includes an institutional vandalism section which increases the criminal penalties for vandalism aimed at houses of worship, cemeteries, schools and community centers. This provision is useful in dealing with crimes such as the very disturbing series of arsons which have occurred at Black churches across the South. The legislation also creates a civil action for victims and provides for other additional forms of relief, i.e., recovery of punitive damages and attorney's fees, and parental liability for minor children's actions. Finally the model legislation includes a section on bias crime reporting and training, since accurate, comprehensive data is essential in combating hate crimes. 

The Inclusion of Gender

In 1996 the Anti-Defamation League added gender to its model hate crimes legislation. The League chose to add gender after coming to the determination that gender-based hate crimes could not be easily distinguished from other forms of hate motivated violence. Gender-based crimes, like other hate crimes, have a special psychological and emotional impact which extends beyond the original victim. The inclusion of gender is important because it sends the message that gender-based crimes will not be tolerated.

In the past five years, as state legislators have realized that it is difficult to distinguish race-based and religion-based hate crimes from gender-based hate crimes, the trend has been to include gender in hate crimes legislation. In 1990, only seven of the 31 states which had hate crime statutes included gender. Today, 19 of the 41 statutes cover victims chosen by reason of their gender. In fact, gender is the category most often included in state hate crime statutes after "race, religion and ethnicity," categories included in all hate crime statutes. Furthermore, the Federal Violence Against Women Act of 1994 (VAWA) allows individuals to file Federal civil law suits in cases of gender-based violence.

After studying the statutes where gender is included, ADL came to the conclusion that the inclusion of gender has not overwhelmed the reporting system, nor has it distracted the criminal justice system from vigorous action against traditional hate-based crimes. Clearly not all crimes against women are gender-based crimes, and prosecutors have discretion in identifying those crimes which should be prosecuted as hate crimes. Prosecutors also must have concrete admissible evidence of bias to charge an individual with commission of a hate crime. Even in cases where gender bias can be proven, prosecutors may decide that the penalty imposed by the underlying crime is in itself sufficient and penalty enhancement is therefore unnecessary. It is also important to realize that there has not been an overwhelming number of gender-based crimes reported as an extension of domestic violence and rape cases.